The precedents are falling fast.  Last week the NLRB overruled the five decade old Bethlehem Steel decision, and now another longstanding precedent has fallen.  The NLRB issued a decision overruling Anheuser-Busch, Inc., 237 NLRB 982 (1978), the case that held that witness statements obtained during an employer investigation of workplace misconduct are exempt from disclosure in pre-arbitration discovery.  This after the NLRB had issued a decision the day before clarifying the definition of witness statements, but not overruling Anheuser-Busch.  It is a significant case because workplace investigations often revolve around the confidentiality of witness statements, which are often obtained only after assurances are given that they won’t be made public.

In American Baptist Homes of the West, 359 NLRB No. 46 (December 15, 2012), a 3 to 1 decision, the NLRB held that “[a]fter careful consideration, we find that the rationale of Anheuser-Busch is flawed.”  The case involved a workplace investigation at a continuing-care facility where a Certified Nursing Assistant had been observed sleeping on the job.  The employer collected witness statements from employees who had witnessed the misconduct.  Employer representatives apparently gave explicit assurances to one of the employees that the statement would be kept confidential but another assumed that it would be kept from disclosure.  The union representative asked for the names and job descriptions of the witnesses and all the statements.  The employer’s representative declined in writing, specifically citing Anheuser-Busch.  Charges followed.  An Administrative Law Judge ruled that it violated the Act to not turn over the identity of the witnesses, citing Alcan Rolled Products-Ravenswood LLC, 358 NLRB No. 11 (2012), a decision we discussed previously.  The Administrative Law Judge held that the employer’s refusal to turn over the witness was controlled by precedent, noting that “arguments regarding the legal integrity of Board precedent…are properly addressed to the Board.”

And, as we well know, those arguments were addressed to the Board on appeal

The Board first evaluated the law regarding information requests, noting that under Section 8(a)(5) there is a “general obligation” to supply a union with relevant information that it needs to “determine whether to take a grievance to arbitration absent settlement.”  The Board then discussed how witness statements fit within this general obligation:

Notwithstanding the employer’s general duty to provide relevant information, the Board in Anheuser-Busch created a broad, bright-line exception, holding that ‘the ‘general obligation’ to honor requests for information…does not encompass the duty to furnish witness statements….’  237 NLRB at 984-985.  In creating this rule, the Board concluded that witness statements ‘are fundamentally different from [other types of information deemed discoverable through information requests], and disclosure of witness statements involves critical considerations which do not apply to requests for other types of information.”  Id. at 984

Those “critical considerations” were potential for reluctance of witnesses to give statements if it was going to be turned over and the potential for witness intimidation.

The Board brushed aside these considerations, holding:

 To begin, we reject the premise of Anheuser-Busch that witness statements are fundamentally different from other types of [relevant] information. . .If relevant and necessary to the union’s representative duties then requested information is, at bottom, fundamentally the same for purposes of the Act.  This is particularly true in the grievance context, where unions must decide whether to expend limited resources processing a grievance at all.  That does not mean, of course, that there are not other factors to consider, much less that a union is always entitled to receive the information that it seeks.  But we are not persuaded that there is some fundamental difference between witness statements and other types of information that justifies a blanket rule exempting statements from disclosure.

The Board concluded that the general rule of law concerning an assertion that relevant information is confidential is the appropriate analysis.  The general principles regarding that test are:

  • If a party asserts that requested information is confidential, the Board balances the union’s need for the relevant information against any legitimate and substantial confidentiality interests established by the employer.  Merely asserting confidentiality (or apparently that the witness gave the statement pursuant to a claim that it would remain confidential) is not enough, there must be some other articulable reason;
  • The party asserting the confidentiality interest bears the burden of establishing that interest; and
  • A party refusing to supply information on confidentiality grounds has a duty to seek an accommodation.

In sum, the clear cut, bright line exemption that witness statements are not discoverable in pre-arbitration information requests is now a thing of the past.  Now, the rule is that witness statements, if requested, must be disclosed.  If an employer wishes to assert that a witness statement is confidential, it bears the burden of establishing a real confidentiality interest but it must always bargain with the union over whether there is a way to accommodate the request.  An example of at least one type witness related issue that has been deemed confidential in the past includes the names of informants to drug use or theft.

As with other recent decisions where the NLRB changed existing law, the agency held that the new rule will apply only prospectively.

Finally, Member Hayes dissented, noting that abandoning a bright line rule of exemption in favor of the confidentiality balancing test will result in even more Board litigation as parties now fight over the disclosure of statements which will result in the grievance procedure “grind[ing] to a halt waiting a final Board decision….”  Member Hayes also pointed out that the new rule conflicts with guidance from the EEOC regarding workplace investigations of issues falling under its jurisdiction, which will necessarily create a problem:

I note that requiring the production of witness statements absent a proven superior confidentiality claim by the employer will also conflict with existing guidance from the Equal Employment Opportunity Commission (EEOC) regarding confidentiality.  The EEOC has stated that confidentiality is a key component of an effective workplace investigation of harassment.  The EEOC’s ‘Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors’ (the Enforcement Guidance) provides that ‘an anti-harassment policy and complaint procedure should contain, at a minimum, the following elements: . . .Assurance that the employer will protect the confidentiality  of harassment complaints to the extent possible.’  The guidance continues:  ‘An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible.’

Employers now will potentially violate EEOC guidelines if required to furnish a union with witness statements in connection to an employer’s investigation of an employee’s harassment complaint.  it is the Board’s obligation to accommodate the policies of the Act to other Federal statutes expressing equally important congressional objectives.  My colleagues fail to make this accommodation. . .

Yet another wrinkle in workplace investigations that will have to be addressed going forward.  Also, as we have noted previously, this decision could be rendered null and void depending on the outcome of the recess appointment litigation.